The tools are in place now
Why has the National Security Agency been collecting data on every phone call, email message, and Internet search made by tens of millions of Americans? Because it can.
It can in two ways. Technologically, the NSA and its private contractors have the ability to amass, store, and sort through unfathomable quantities of digital data, so much so that the stash is measured not in megabytes or gigabytes (which were extraordinarily massive just a few years ago) but yottabytes, which means a trillion trillion bytes (a number that’s written out as 10 followed by 24 zeroes). To put it another way, the data piling up in the NSA’s storage centers equals the amount of bits and bytes in 700 trillion DVDs.
But the NSA can also do what it’s doing legally - sort of. This is the part of this story that many find hard to grasp. After all, the 4th Amendment to the U.S. Constitution reads in full:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Collect everything, search through it later
On its face, this would seem to bar the sorts of “searches and seizures” that the NSA is conducting routinely. True, the amendment bans “unreasonable” searches and seizures, suggesting that reasonable ones are permitted. But it also states that, in order to be deemed reasonable, the warrant for a search has to specify the place to be searched and the person or thing to be seized.
By contrast, the NSA’s data sweeps are, by nature, vast, broad and unspecific. The whole idea is to collect (seize) everything indiscriminately and then go back and search through it later, as necessary. (As one official recently put it: in order to find a needle in a haystack, you first have to have the haystack.)
The legalistic maneuver in allowing these sweeps to take place is the Patriot Act, which Congress hastily passed a few days after the terrorist attacks of September 11, 2001. Specifically, Section 215 of the act gives intelligence and law-enforcement agencies broad authority to request “any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism.”
Section 215 places only three limits on this authority. First, Americans cannot be investigated solely on the basis of something they have said or written. Second, the requests must be approved by a special court, which has been established by the Foreign Intelligence Surveillance Act (FISA). Third, Congress must be informed of these requests.
Indifferent to the truth
The first restriction is very important; it ensures that the 1st Amendment to the Constitution, guaranteeing the right of free speech, remains supreme. But the other two limits are very loose. The proceedings and rulings of the FISA court are themselves top secret; and its few public reports show that the court has rejected less than 1 percent of the requests. As for Congress, oversight powers are explicitly limited to the House and Senate Intelligence Committees, which receive these reports only once every six months; their hearings, which might take place more frequently, are also conducted in secret.
Last March, during a rare public hearing, Senator Ron Wyden, Democrat of Oregon, asked James Clapper, the Director of National Intelligence, “Does the NSA collect any type of data on millions or hundreds of millions of Americans?” Clapper replied, No, sir…not wittingly.”
As we now know, Clapper was lying. (Lying to Congress is a felony, though the statute has rarely been enforced.) Wyden, who is a member of the Senate Intelligence Committee and had thus been briefed on the program, knew that Clapper was lying—but he said nothing in public, lest he violate his own security clearances. It’s hard to have effective oversight if the officials being monitored are so indifferent to the truth.
It’s worth emphasizing: The NSA is not Stasi
In other words, there is a clear tension between the 4th Amendment—a crucial pillar in the foundation of not only American law but American life—and the Patriot Act. Some legal scholars believe that certain parts of the Patriot Act are unconstitutional. But there is no way to test this claim because the FISA Court’s decisions, which lay out the legal reasoning for allowing a warrant, are secret; the Patriot Act itself permits the secrecy; and the U.S. Supreme Court, throughout all of American history, has almost never challenged a president’s assertion of “national-security interests.”
But let’s back up. What do these surveillance programs entail—and not entail? First, it’s worth emphasizing, the NSA is not Stasi. Its employees do not listen in on phone conversations or read emails. Nor is it their mandate to track down critics of the American government (whereas Stasi’s sole aim was to monitor domestic critics of the Communist Party). Nor is modern-day America like Orwell’s 1984. If it were, the police would be bashing down my door as I write this, and the world would know nothing of the articles in the Washington Post or the Guardian (because they would never have been published).
An almost irresistible temptation
What the surveillance system does (and the initial steps are done entirely by computers) is to scoop up lots of digital data, then mine the data for significant patterns. For instance, let’s say a particular phone calls a phone in Pakistan, then calls another phone in Sudan or Somalia; let’s also say the phone’s owner also downloads a bomb-making manual or a jihadist’s inciteful lecture on his laptop. This pattern of communication would set off an alarm, prompting an analyst to seek permission to look into the contents of conversations and email.
A case could be made that this is legitimate intelligence activity. More to the point, if intelligence officers—or Presidents—were told that they have the ability to do this, and that it might prevent a terrorist attack, the temptation to say “Go ahead” would be almost irresistible. If there were a terrorist attack, and if it were revealed that the President had rejected this program, had not utilized the technology that was in his grasp to protect the lives of Americans, he would be harshly criticized, accused of having blood on his hands; probably he would be impeached.
A system of controls that Stalin’s commisars would have envied
Since September 11, most Americans have assumed that the intelligence agencies have something like this system in place. The growth of Facebook and the prevalence of directed advertising on the Internet (if you search for information on cars, you’ll soon be seeing a lot of car ads on your computer screen) have lowered the value, and almost eliminated the expectation, of privacy.
However, the disclosure that the U.S. intelligence agencies are sweeping up and storing everything about every American’s personal communications—this is what astonishes the vast majority of citizens, even those who generally tolerate surveillance and disapprove of Edward Snowden.
Here is the big concern they quite properly sense: These powerful surveillance networks, if placed in the hands of an authoritarian president, could easily enable a system of controls that Stasi’s bureaucrats or Stalin’s commisars would have envied.
„The tools are in place now“
Shortly after the stories about Snowden’s leaks hit the front pages this month, I talked with Brian Jenkins of the RAND Corporation. Jenkins is a prominent terrorism expert, a pioneer in the field. He compiled the first database of international terrorists back in 1971, and wrote one of the first monographs on the subject back in 1974. He has served as a consultant to several presidential commissions on the terrorist threat; some of his proposals have been codified into policy.
As Jenkins put it to me, “I’m not squeamish, I don’t wring my hands over what has to be done” to track down terrorists. And yet, he thinks that U.S. policies have gone too far. “What we have put in place,” he said, “is the foundation of a very oppressive state.” Some future president who wanted to move in that direction—either as a personal inclination or in response to a new spate of terrorist strikes—could do so right away. “The tools are in place now,” Jenkins said.
The most worrisome thing
Or, more worrisome still, the steps toward tyranny could be taken incrementally, almost imperceptibly. Jenkins regards each element of the surveillance system as reasonable. The problem is that, once in place, these elements tend to stay in place. “What now seems extraordinary,” he said, “is soon accepted as normal, and becomes the baseline for the future.” (For instance, street cameras were once decried as invasions of privacy. Now, very few Americans have any problem with them, especially after they were crucial in helping police spot and identify the Boston Marathon bombers.) “Over a period of time,” Jenkins says, “the baseline shifts, and these new intrusions accumulate and reinforce one another. And that fundamentally changes things.”
Ironically, Americans have put up so little resistance to these accumulations, in part because they have experienced so little terrorism. There have been 42 terrorist plots in the United States in the dozen years since the attack on the World Trade Center. All but four of these plots were derailed. Three of those four succeeded to some extent, killing a total of 17 people. That’s tragic, but tiny compared with 14,000 homicides in the United States just last year (and that was the smallest number of murders here since the early 1960s).
The most worrisome thing about terrorism to Americans is less what has happened than what might happen. As long as that is the case, the accumulation of intrusions, as Jenkins puts it, will probably never let up—especially if it’s believed (rightly or wrongly) that these intrusions, as invisible as they are pervasive, might reduce, even by a little bit, the chance of a terrorist attack.
Fred Kaplan is the national-security columnist for Slate.com and author of „The Insurgents: David Petraeus and the Plot to Change the American Way of War“.